February 11, 2023

It’s time to review powers of our Judiciary

It’s time to review powers of our Judiciary

By Tonnie Iredia

These days, my table tennis club has become more exciting with daily discussions on politics and elections in Nigeria. Last week was particularly interesting going by the divergent but well-articulated viewpoints on election petitions especially the judgment delivered by the Supreme Court concerning the candidature of the APC for the Yobe North Senatorial District.

It is no longer news that our Apex Court resolved the matter in favour of Ahmad Lawan, making our current senate president the winner of a context which many people believe he was not part of. The popularity of public opinion on the subject notwithstanding, it is wrong to continue to argue that Lawan did not participate in a contest after the apex court has ruled in his favour. If members of the public decide to hold on to their perception, lawyers ought not to join them.

It was perhaps against this background that Yakubu Maikyau, President of the Nigerian Bar Association (NBA), warned that lawyers criticising the decision of the Supreme Court affirming the Senate President, Ahmad Lawan, as a senatorial candidate in the forthcoming general elections will face sanction. Maikyau, a Senior Advocate of Nigeria (SAN), spoke last Thursday at a valedictory court session in honour of Ibrahim Buba, a retired judge of the Federal High Court in Abuja. Maikyau’s position is not new.

In 2015, a former NBA President, Joseph Daudu(SAN) had threatened contempt proceedings against lawyers criticising Supreme Court’s injunction on a case involving the trial of former Senate President Bukola Saraki. However, whereas Maikyau’s admonition targetted lawyers, who have a professional duty to help sustain a positive image for the Nigerian Judiciary, Daudu seemed to have extended the duty to every citizen.

Another difference observable in Daudu’s statement was a greater concern about the language of criticisms. In his words “decency and elementary regard for the finality of the decisions of the Supreme Court should restrain every citizen of this country, particularly a legal practitioner, from using base and scurrilous language against the highest court of the land.” What this seems to suggest is that criticism may be allowed if it is not done to disparage our Judiciary.

It is also rational to add that such critics especially in the case of lawyers should desist from making comments on judgments that they were yet to read and appreciate the reasoning of the judges concerned. If so, we are on the same page with those who are warning against reckless criticisms of decisions of the Supreme Court. We also agree that Nigerians in general including politicians should learn to accept every judgment of that Court as final and binding.

Where the decisions concerned are made at any other level of the judiciary, aggrieved persons are generally encouraged to appeal such decisions without first resorting to intemperate language.  In reality however, it would be a tall order for any person to seek to stop every criticism of the decisions of the Supreme Court. To do that is to suggest that once a judge is elevated into our apex court, the said judge automatically transforms into a spirit that can do no wrong. Besides, it suggests that our apex court is a special human group that cannot have even one bad egg. Such a design seems to presuppose that our court system is the simplest and easiest way of getting justice in the land and that no one would have the courage of resorting to extra judicial means of ventilating their grievances.    

It is important to make the point that it is hard to change the firm belief of many citizens that election petitions are won by the highest bidders in Nigeria. Wherever there is any truth in such a belief, undue emphasis on a so called image of the judiciary becomes superfluous. A friend from Adamawa State once said some of his people will find it difficult to believe in our court system because they remain aggrieved over how the governorship election petition in 2012 in their state was handled. 

He recalls that although the election was reportedly won by the then incumbent governor Murtala Nyako, the appeal filed by his closest rival was deliberately stalled by the Court of Appeal. According to Section 285 of our Constitution every election petition appeal must be concluded in 60days. In the case of the 2012 Adamawa case, it was only a few hours to the deadline that a hurriedly assembled team delivered a judgment in favour of Nyako making it constitutionally impossible for the aggrieved to take further steps. 

The above example demonstrates how the Judiciary can be used to win elections in Nigeria in which technicality often displaces substantive justice. No society sets up courts to prove forms, procedures and processes of law. Such well-thought out modalities are by and large the means for attaining the goal; they are not the goal.  The real goal is substantive justice which in election matters is for the winning candidate to garner the highest number of votes and the required geographical spread. Any other template that changes the will of the people can hardly place confidence in our electoral system. For example, not many believed that Candidate Ademola Adeleke lost the 2018 governorship election in Osun state. The argument that he lost the case because one of the Judges was reportedly absent at any of the sittings of the Tribunal basically eroded public confidence.

The best way to keep the good image of the judiciary is for the latter to distance itself far away from the gimmicks of the political class. For instance, the collation of election result is not a judicial function but a technical assignment which is best left for election experts. Where the Judiciary is not satisfied that the computation put before it adds up, it seems wiser to reject the entire case rather than getting involved in the intricacies of collating the votes.  In the Imo governorship election petition which the Supreme handled differently, the victorious candidate ended up scoring more votes than available voters. If the Court had stopped the party as was done to its candidates in Rivers and Zamfara states, the recklessness of political parties in Nigerian elections would probably have reduced. Unfortunately, the parties have not changed their ways because the rulings have not consistently whipped them into line.

A major area where our Supreme Court needs to up its game is to quickly embrace innovations in the Electoral Act. In 2015 many elections were won and lost on the issue of Card reader – a technical device introduced by INEC to strengthen its system. Whereas many people agreed with the judiciary that the Card Reader was unknown to the law for the 2015 general election, President Goodluck Jonathan had on March 20, 2015 signed an amendment to the electoral law which validated a scheme such as card reader. If all umpires are able to get onto the same page, none should ever agree with politicians who always oppose any template that can check rigging. In the latest innovations in the Electoral Act 2022, the Judiciary is urged to take the lead in stopping political parties who use various strategies to maintain status quo and frustrate innovations which everyone except riggers are comfortable with.

If this approach is not well followed by the Judiciary, it would be difficult to convince many people not to imagine that the parties are manipulating our judges. In the past, politicians formed caucuses to impose privileged candidates and heat up the polity. While accepting that party primaries are the internal affairs of political parties, the law is conscious of the damage that would be done if no checks are placed on the conduct of the contests. Accordingly, any election held without giving adequate notice to INEC or without INEC monitoring the process defeats the spirit of the law and returns Nigeria to the era of party caucuses which was the mischief the Electoral Act had sought to cure.  Now that events have shown that powerful politicians will not let the nation progress, it is time to limit the role of the judiciary to the nullification of faulty elections while allowing voters to determine the real winners in rerun exercises